Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Monday, July 23, 2007

My Hoover Institution colleague Benjamin Wittes' new TNR online column continues his examination of proposals to amend the Military Commissions Act and related legislation that were passed under the last Congress. The current column contrasts two legislative proposals, one by Senators Leahy and Specter that would give the detainees at Guantanamo habeas corpus rights, and the second by Senator Levin that would expand the judicial protections in the current combatant status review hearings. Ben's bottom line is that the Leahy-Specter proposal is merely another Congressional punt - essentially dumps issues that ought to be set out by Congress into the laps of the courts without substantive guidance - a bill he rightly says should be called the "Leave It To Justice Kennedy Act." Levin's proposal, by contrast, while not without problems, is a serious, substantive one that ought to serve as the basis for negotiation and compromise - not the current veto threat waved by the White House - with the executive. Some excerpts:

***In introducing their bill on Guantánamo Bay detentions earlier this year, Senate Judiciary Committee Chairman Patrick Leahy and ranking member Arlen Specter announced that they intended it--in Leahy's grand words--"to restore the Great Writ of habeas corpus, a cornerstone of American liberty since the founding of this Nation." The bill, Leahy said, was an effort to "amend last year's Military Commissions Act, to right a wrong and to restore a basic protection to American law."

Translation: The bipartisan legislation aims to kick the question of what to do about detentions at Guantánamo to the courts so that senators don't have to make hard choices.

The so-called Habeas Corpus Restoration Act of 2007, now awaiting action on the Senate floor, is the darling of human rights groups and liberals offended by the Bush administration's detention policies but lacking any idea of a better way to handle the people the government believes to be sworn enemies of this country. The bill is emotionally satisfying to administration critics because it undoes something the administration was keen to accomplish in the MCA last year: stripping the courts of jurisdiction over the hundreds of lawsuits filed by detainees at the base. Reinstating this heap of lawsuits would put pressure on the administration to clean up its act, as the suits did before the MCA dumped them out of court. But it would do it without requiring senators to think too hard about what a sensible policy might actually look like. Were the bill honestly named, it would be called the Leave it to Justice Kennedy Act.

Indeed, putting aside all of the rhetoric about the Great Writ, cornerstones of American liberty, and the founding of the nation, the bill does virtually nothing to shape the law in this murky area. Can the administration lock people up as unlawful enemy combatants? If so, what level of due process are detainees entitled to? The Habeas Corpus Restoration Act doesn't say. All it does is allows the courts to hear cases under whatever rules might happen to exist--or whatever rules the courts might happen to relieve Congress of the burden of creating.

The frank truth is that the habeas question is a sideshow. Whether or not the courts have jurisdiction over Guantánamo --and the Supreme Court may well decide that it does even in the absence of congressional action--they can't fix the core of the problem. The real question is the one this bill self-consciously avoids: What should the government do with an alien abroad whom it believes to be too dangerous to let loose yet whom it cannot charge with a crime? That's a question for Congress, not the courts. ***This question brings us to Section 1023 of the defense authorization bill, the bill that the Senate shelved this week when Republicans blocked Democratic efforts to use it to force a change in Iraq policy. Section 1023 is the creation of Senate Armed Services Committee Chairman Carl Levin, who has also cosponsored the Leahy-Specter bill. It hasn't gotten the attention the habeas bill has garnered, partly because it doesn't have a pretentious name that evokes the great traditions of American law. But, though drably titled "Procedures for Combatant Status Review Tribunals; Modification of Military Commission Authorities," Levin's proposal is a serious piece of legislation--one that does more than toss a hot potato to the courts or yap about closing Guantánamo. It's a real, albeit far-from-perfect, effort to imagine law that might govern long-term detentions in the war on terrorism.

So predictably, the Bush administration announced earlier this month that it "strongly opposes" the section and declared that if it were part of a final bill, the president's "senior advisors would recommend that he veto the bill." This is foolish. With the Supreme Court breathing down its neck, the administration has to cut itself a deal that puts itself on a stronger legal footing. The flaws in Levin's proposal are altogether fixable if the administration engages seriously it.Levin's proposal starts with the key concession to reality that liberals and human rights groups are going to have to make: that there are some people this country is going to hold for a long time without charging with crimes. Put simply, Levin's language would validate in law the administration's idea of holding Al Qaeda and Taliban fighters as "unlawful enemy combatants"--and it doesn't put a time limit on these detentions. Moreover, it would validate the essential mechanism the administration has erected to determine whether a detainee is properly categorized as an enemy fighter: panels known as the Combatant Status Review Tribunals.

On the other hand, Levin's bill would also make these tribunals far more judicial than the ones the administration holds under current authorities. It would make the presiding officer a military judge. It would give lawyers to detainees, who currently only get non-legal assistance from a "personal representative." It would bolster the detainee's ability to present evidence of his own and to attack the government's evidence against him. Detainees' lawyers would have access to the classified evidence against their clients, and detainees would get a summary of that evidence "that is sufficiently specific to provide the detainee a fair opportunity to respond." ***... [O]n the big picture, Levin's spot on--that is, he's envisioned a legal structure for the detention of people who are not prosecutable as criminals yet who don't fit comfortably into the traditional premises of the laws of war either.

In my last column, I argued that the administration is likely to get thrashed in the next round of Supreme Court litigation over Guantánamo--litigation the High Court has just agreed to hear next term. The only viable way to avoid this fate, which could have real negative consequences for the executive branch, is to create a realistic statutory legal framework for handling detainees so that the courts have something to defer to. Levin's bill is a first draft of such a framework.An administration that was serious about preserving its ability to detain the enemy would recognize in it a partner and an opportunity. A Senate interested in actually doing its job--rather than shunting its job to the courts--would see this bill, not the Habeas Corpus Restoration Act, as the center of the action.

Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.